January 11, 2006

Even The Appearance Of Impropriety

The most difficult principles of human conduct are, of course, the ones most easily abused. Still, for those who imagine the possibility of ethical behavior from lawyers (and from lawmakers), the princple that 'even the appearance of impropriety is improper" stands as a firm, strong guide to conduct. It means, for example, that in a nation committed to the rule of law -- the rule of principle instead of personality -- lawyers and lawmakers faced with a question that might -- might -- raise the spectre of impropriety ought to find a path forward that is most consistent with proper conduct and regard for the rule of law, the rule of principle itself. It is this ethical precept, for example, that suggests a judge ought to recuse him or herself if there is even the appearance of a potential conflict based on personal self-interest (something, by the way, Supreme Court nominee Alito failed to do in a case against a company in which Alito held stock).

Like any demanding precept, this is a difficult and challenging one for human beings to adhere to. But, isn't that the point? All of which makes the letter Congressman David Dreier wrote to his constituents to explain why he supported an ethics rule change in late 2004 that allowed Tom DeLay to keep his majority leadership position notwithstanding his indictment and notwithstanding the previous rule enacted by reform minded Republicans that demanded indicted officials to step down from their positions.

In the letter, Dreier (who is evidently being asked to lead the Republican Party's post-DeLay, post-Abramoff, post-Scanlon, post-Cunningham, post-Noe, post-Ney, post-Libby, post-Safavian approach to ethics) supported the rule change that favored keeping indicted Tom DeLay as majority leader because, he argued, otherwise any official would be subject to the possibility of having to step down if indicted by politically minded prosecutors. (The possibility of politically motivated prosecutions, of course, has risen in a world where politics has been made a blood sport by those like Karl Rove who now exert so much control over a Republican Party that once actually stood for principles and not just 'power and winning at all costs'. In that sense, the DeLay Rule was much more concerned with holding onto power than committing to principle.)

Put differently, lawmaker Dreier has turned the ethics precept about impropriety on its head. He had made black, white and white, black. He wrote his constituents, in effect, that even the possible appearance of a political motive by prosecutors should be enough to outweigh the possible appearance of illegality by lawmakers. His position -- the rule now governing how Republicans respond to the appearance of impropriety and illegality among their members -- is an insult to the ethical precept about impropriety and to the rule of law. This DeLay Rule is more consistent with the rule of men, the rule of Tom DeLay than the rule of law. It substitutes the interpretation of people like David Dreier and Tom DeLay for principle.

In this, Dreier advances a new approach to the world's oldest democracy. Let the rulers -- the personalities in power decide when and when not to ask their buddies to step aside. Let us turn this nation from one ruled by law to one ruled by personality.

Dreier's letter, of course, is itself an impropriety for anyone who believes in the rule of law. The Republicans in Congress who voted to amend their reform to allow the indicted DeLay to retain his powerful position acted improperly -- and, again, certainly acted to create an appearance of impropriety.

Now that Abramoff has agreed to work with prosecutors, the same Republicans are scurrying to correct for their past actions. They want to be able to claim proper conduct. Unfortunately, by the standards of the ethical rule regarding impropriety -- and in the eyes of any human being who can see past 'red' vs. 'blue' ideology -- these Republicans are focused and obsessed more on creating an 'appearance of propriety' than on reforming themselves to actually have and follow proper conduct.